SZWCO v Minister for Immigration

[2015] FCCA 1760

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1760

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Whether failure to consider a claim or integer of a claim – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Further amendment of application proposed at hearing – whether leave be granted to the applicant to further amend application – leave refused.

Legislation:

Migration Act 1958 (Cth), ss.46A, 195A, 476

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26
Uelese v Minister for Immigration & Border Protection (2015) 89 ALJR 498

Applicant: SZWCO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 357 of 2015

Judgment of: Judge Smith

Hearing date: 2 June 2015

Date of Last Submission: 2 June 2015

Delivered at: Sydney

Delivered on: 1 July 2015

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Applicant: Rasan T. Selliah & Associates

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application for leave to amend the application be refused.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 357 of 2015

SZWCO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.476 of the Migration Act1958 (“Act”) in respect of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the Minister for Immigration & Border Protection to refuse to grant the applicant a protection visa.

2. When the matter first came before the Court on 9 March 2015, the Court ordered by consent that the applicant have leave to file and serve any amended application by 10 April 2015. In spite of that order and without seeking any further leave, the applicant filed what purported to be an amended application on 25 May 2015. He has given no explanation for the delay. However, the Minister was able to address the grounds in an amended application in submissions filed on the following day. The matter came on for hearing on 2 June 2015 before me and, without notice, Mr Bodisco, who appeared for the applicant, made an application to further amend the application. As the so-called amended application had been filed without leave, this was in fact an application simply to amend the original application.

3. Mr Bodisco abandoned all the grounds other than those contained in the proposed further amended application. The grounds of the proposed further amended application are:

   1.The Second Respondent engaged in legal error by failing to consider a claim or integer of a claim that arose on the information and evidence before it.

   1.1The Applicant squarely raised a claim to fear harm from the Sri Lankan authorities on the basis that he lacks “normal travel documents”;

   1.1.1 The Applicant had claimed that he had obtained his Passport through use of a forged document and had destroyed the document during his voyage to Australia;

   1.2The Second Respondent failed to deal with this integer of his claims, namely whether the absence of travel documents or the fact that he left Sri Lanka with forged documents would place the Applicant at risk of harm.

4. The Minister did not consent to the further amended application and I reserved the question of whether leave ought to be granted and heard argument on the sole ground relied upon by the applicant.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 9 August 2012 as an unauthorised maritime arrival. On 17 November 2012 the Minister exercised his discretion under ss.46A and 195A of the Act and, on 14 December 2012 the applicant lodged an application for a protection visa.

2. In light of the ground raised in the application it is only necessary to explain in very broad outline the claims made by the applicant as the basis for his protection visa claim. The applicant claimed to fear persecution for reason of his Tamil ethnicity, his imputed political opinion being in favour of the LTTE, and membership of a particular social group of failed asylum seekers. He claimed that a friend of his, who was a member of the LTTE, was shot by a splinter group of the LTTE, the TMVP, in about 2006 and then a friend of the person he knew had joined the TMVP and sought to recruit the applicant to that group. When the applicant refused to join, that person was angry and warned the applicant that something would happen to him later.

3. In about November 2006 the applicant claimed that he was abducted by this person held for a few days and beaten. The applicant claimed that he was under continued pressure from the TMVP but that he kept resisting. The person he knew in that group asked the applicant for money and that members of the group harassed him to do work for them and would beat him if he refused. The applicant said in about 2009 through to 2011 he was harassed by the CID which his friend’s friend had now joined after the end of the civil war.

4. Finally, the applicant claimed that he would be interrogated, detained and seriously harmed upon arrival at the airport in Sri Lanka because he was a Tamil, he came from Australia and was from the North East of Sri Lanka which was a former LTTE controlled area in which would raise suspicion. In written submissions to the Department the applicant’s representatives fleshed out some of these claims. In particular, they submitted that the applicant would face harm as a failed Tamil asylum seeker. It will be necessary to return to the way in which this particular claim was expanded upon.

5. On 2 August 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 27 November 2014 and the Tribunal made its decision on 13 January 2015.

The Tribunal’s decision

1. The Tribunal found that the applicant was not credible in relation to a number of aspects of his claims. It accepted that he had a friend who was a member of the LTTE and who was killed and that after his friend’s friend had joined the TMVP he made an attempt to recruit the applicant to join that group and that the applicant declined to do so. However, because of its concerns with the inconsistencies in the evidence given by the applicant to the Tribunal, it did not accept that the applicant was abducted in 2006 by that person, detained and beaten and subsequently made to work for the TMVP. It also rejected the claim that he was harassed in 2007 and subsequently that he was forced to give money to his friend’s friend. It also rejected the applicant’s claims to have been harassed by the CID between 2009 and 2011.

2. The Tribunal found that the fact that the applicant was able to leave Sri Lanka on his own passport without apparent difficulty did not support his claims that he would be of interest to the CID and would be subject to harm from the CID, his friend’s friend, or other Sri Lankan authorities. It also rejected the claim that his wife had received threatening telephone calls since he had left Sri Lanka.

3. The Tribunal found, on the basis of country information, that Tamils are not at risk of being subject to persecution or significant harm solely on the basis of their ethnic background. Although the Tribunal accepted the information concerning the treatment of returnees or failed asylum seekers upon their return to Sri Lanka, the applicant had left legally on his own passport and so committed no offence in leaving and was of no interest to the Sri Lankan authorities. Further, the processes that are applied to returnees were applied without regard to race or religion. Given the Tribunal’s earlier findings, it considered that there was no evidence that the applicant had any real or actual or even perceived connection to the LTTE and he did not face a real chance of persecution because of an imputed political opinion by reason of not assisting the TMVP.

4. For those reasons, the Tribunal found that there was no real chance that the applicant would face persecutory harm should he return to Sri Lanka on the basis of him being a Tamil of the Hindu faith as a perceived LTTE supporter or on the basis that he is a failed asylum seeker. Similarly, on the basis of its factual findings, the Tribunal concluded that the applicant did not face a real risk of significant harm should he be returned to Sri Lanka from Australia and found that the applicant did not satisfy the criteria for the grant of a protection visa. Accordingly, it affirmed the decision of the delegate to refuse to grant the applicant a protection visa.

Consideration

1. The sole ground is whether the Tribunal fell into jurisdictional error by failing to consider a claim, or integer of a claim, namely that he would return to Sri Lanka without normal travel documents and that he had left Sri Lanka with forged documents.

2. Dealing first with the lack of normal travel documents, it is clear that the Tribunal accepted that the applicant no longer had a passport and, for that reason, would return to Sri Lanka without such a document. It noted, at [23], that the applicant claimed that he caught a boat from Indonesia to Australia in August 2012 and that his passport was lost overboard during the trip. The question however, is whether there was a claim to fear persecution on account of this fact and, if so whether the Tribunal dealt with it.

3. The highest that the applicant’s argument went in this respect is that, in written submissions to the Department dated 10 July 2013, the applicant’s representatives stated:

   … [The applicant’s] profile makes it likely that he would be taken into police custody for questioning, as he is from the East – a former LTTE controlled area, has a past history of detention, has suspected links with the LTTE and lacks normal travel documents.

   (Emphasis added)

4. The submission was based upon a report from the Home Office of the United Kingdom dated 7 March 2012.

5. In its reasons, the Tribunal dealt with the issue of failed asylum seekers as follows:

   [69]The DFAT country information indicates that involuntary returnees are processed at the airport by the Sri Lankan Department of Immigration and Emigration and the state intelligence service and the airport CID. This may take several hours. DFAT assesses that Sri Lankan returnees are treated according to the standard procedures, regardless of their ethnic background and religion and that the assessment is that detainees are not subject to mistreatment during their processing at the airport. The report indicates that most returnees from Australia are questioned by police upon their return. The country information as discussed above sets out the broad processes that all returnees are subject to upon return and those processes apply without regard to race or religion.

6. In my view, that paragraph dealt conclusively with all of the applicant’s claims in so far as they concerned his fear to be subject to persecution for reason of having returned from Australia as a failed asylum seeker. It may be noted that the DFAT information relied upon said that the processes applied to “all returnees”. That is inconsistent with the information relied upon by the applicant in his representative’s submissions. For that reason, to the extent that any claim was raised based upon the fact that the applicant did not have a passport, it was dealt with by the Tribunal.

7. The second relevant matter is the alleged claim that the applicant faced harm on return to Sri Lanka by reason of having obtained a passport unlawfully. This claim was never made. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, the Full Court of the Federal Court addressed the ground of a failure to consider claims and said:

   [55]Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error.  Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):

   ‘... the task of the tribunal involves a number of steps.  First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.  That determination in part at least involves a question of law.  If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class.  There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’

   In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals.  Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution. 

   …

   [58]The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

8. Further, in SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26, the Full Court said at [37]:

   [37] We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.

9. It may be questioned whether that remains good authority in light of the decision of the High Court in Uelese v Minister for Immigration & Border Protection (2015) 89 ALJR 498, however, there is no need for me to resolve that issue. That is because on any view, the applicant never claimed that the fact that he had obtained his passport in a particular way might give rise to a well-founded fear of persecution.

10. The applicant relied upon a passage in the transcript of the hearing before the Tribunal in which he was asked questions about his passport. The applicant said that, because he was too young to get a passport he had to get another person to apply for him and had to change his birthdate on his birth certificate for that purpose. However, neither at the hearing nor anywhere else did he connect that with any well-founded fear of persecution.

11. The applicant submitted otherwise in reliance upon two sentences in his written submissions to the Department. The first was: “[the applicant] has instructed us that he fears that when he arrives at Colombo airport he will be interrogated upon return as he sought asylum in Australia.” Mr Bodisco argued that the words “he sought asylum” implicitly included a reference to the way in which the applicant obtained a passport. I can see no basis for accepting that argument. Whether or not the applicant sought asylum in Australia simply has no logical connection with the manner in which the applicant might have obtained his passport or whether the applicant left Sri Lanka illegally.

12. The second sentence relied upon by the applicant is that set out at [16] above. However, once again I can see no logical connection between the lack of normal travel documents and the way in which the applicant obtained his passport and whether or not the applicant left Sri Lanka illegally.

13. The applicant also relied upon a summary of country information concerning illegal departure from Sri Lanka that was set out in the delegate’s decision:

    As reported… since 2 November 2012, Sri Lankan irregular maritime arrivals non-voluntarily returned from Australia have been charged under Immigration and Emigration Act for offences related to their irregular departure from Sri Lanka. Sri Lankans who depart Sri Lanka without proper authority commit a criminal act under Section 45 of the Immigration Act 1998 (1) (b). This is in fact two offences: the first being departure from the country from other than an approved port (Section 34) and departing from the country without a valid passport (Section 35( a))…

14. Neither the applicant nor his representatives ever mentioned this paragraph during the process of review before the Tribunal or indeed before the delegate. However, the Tribunal did deal with the issue as follows:

    [68]… The applicant left Sri Lanka legally on his own passport and on that basis committed no offence in leaving…

15. Mr Bodisco submitted that the Tribunal was wrong in finding this because the applicant had obtained his passport fraudulently. However, it seems to me that the question of whether the applicant’s passport was valid within the meaning of the Sri Lankan Immigrants and Emigrants Act was a question of fact for the Tribunal. The applicant in fact never submitted to the Tribunal that he had not legally left Sri Lanka on his own passport. While it may be that the consequence of the deception practised upon the Sri Lankan authorities in obtaining the passport might in fact have meant that the passport was invalid and therefore that the applicant had breached the Immigrants and Emigrants Act, there was no evidence or submission before the Tribunal that required that conclusion to be drawn by it.

1. In summary, this so-called claim is no more than a reconstruction made by the applicant’s lawyers well after the Tribunal’s decision had been made. There was no requirement for the Tribunal to consider the claim and no jurisdictional error has arisen in respect of it.

2. For those reasons, I consider that there are no merits in the ground sought to be raised by the applicant. In addition to that fact, the applicant has given no reasonable explanation for his failure to comply with the Court’s order. For abundant clarity, I note my view that is insufficient to state from the bar table, as Mr Bodisco did, that he was briefed late. There was no evidence of that fact before me but even if I accepted it, the applicant had been legally represented from the very beginning of these proceedings. The absence of explanation for the failure to comply with the order leads me to infer that there was no reasonable explanation. Such disregard for the Court’s orders and a lawyer’s obligations to the Court is of some concern and the applicant’s lawyers ought to be on notice that it has the potential to form the basis for a personal costs order against them.

Conclusion

1. For those reasons I refuse leave to amend the application. There being no other grounds relied upon, the application must fail. The application is dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  1 July 2015